HKSAR v. LAW NGO HIN

DCCC 395/2022

[2023] HKDC 752

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 395 OF 2022

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REASONS FOR SENTENCE

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1.  D1 and D2 have been jointly charged with two counts of robbery. However, D2 has absconded ever since the case was transferred to the District Court. Before me, D1 has pleaded guilty to both counts. Also D1 has admitted the summary of facts read out to him in open court.

2.  The facts revealed that the first robbery occurred at a time close to the midnight of 13 July 2020, whilst the second robbery occurred at some time past the midnight of 16 July 2020.

3.  Both robberies occurred at, or in the vicinity of, an internet cafe named GNET, which was situated on the first floor of Tsuen Wan Garden, Tsuen Wan.

4.  I shall first mention the facts of the first robbery.

5.  At about 11:35 p.m.  on 13 July 2020, Mr To finished playing video games at the said internet cafe and was leaving alone.  Unknown to him, he was being followed by D1 and a male (hereinafter I shall refer to that male as Male B).

6.  After walking for five minutes, Mr To reached a pedestrian subway.  He continued with his walk and was then engaged in a conversation with someone on the phone.  All of a sudden, Male B came up from behind and grabbed Mr To’s neck.  Mr To lost his balance and fell to the ground as a result.  Male B immediately snatched the black paper bag which was then being carried by Mr To in his hand.  Male B fled away.

7.  Mr To had the following items in his black paper bag:

(i)  his wallet (which was worth $300);

(ii)  Hong Kong Identity Card;

(iii)  Home Return Permit;

(iv)  $100 cash;

(v)  his mobile phone, which was worth $3,000; and

(vi)  an empty iPhone box.

8.  The black paper bag and those items could not be recovered.

9.  In a subsequent interview with the police, D1 confessed that he acted as a lookout when Male B was robbing the said Mr To in the subway.

10.  The facts of the second robbery are as follows.

11.  At about 8 p.m. on 15 July 2020, two males, who were respectively surnamed Chan and Cheung, were playing video games together at the same internet cafe that I have referred to when reciting the facts of the first robbery.

12.  At about 11:30 p.m., Chan went to the toilet and Cheung was left alone playing.  D1 and Male B went up to Cheung and asked him to go downstairs of the cafe and have a chat.  For some reason Cheung followed them. 

13.  A moment later Male B returned to the cafe to find Chan.  Male B asked Chan to go out of the cafe with him on the pretext that Cheung was looking for him.  Not suspecting that there was anything wrong, Chan followed Male B and was led to the place downstairs where he found Cheung and D1.

14.  At that time Chan had in his possession both his own phone and Cheung’s phone.

15.  The matter did not end there.  Chan and Cheung were further taken to a garden, or park, at Tai Ha Street.  There, D1 led Chan to a place in the park, whilst Male B led Cheung to another.

16.  After some talk, at about midnight on 16 July 2020, D1 asked Chan to surrender his mobile phone.  At the outset Chan refused, but not long after that D1 said to Chan that he would beat him up should he not comply with his order.  Being scared that D1 would use force on him, Chan surrendered both his own mobile phone and that of Cheung to D1.  D1 confiscated both phones and fled the scene.

17.  Chan immediately went to the other part of the park to look for Cheung and Male B.  But he was told by Male B that he was not acquainted with D1 and had no idea where he had gone.  Male B left the park.

18.  Chan and Cheung’s phones were worth $7,000 in total.  The phones could not be recovered.

19.  The three victims reported the matters to the police.  Police viewed CCTV footages and noticed the presence of D1 and Male B at the time the three victims were at the internet cafe.

20.  Police conducted two video-recorded interviews with D1.  D1 confessed that on both occasions it was him who came up with the suggestion of robbing some young men of their mobile phones.  He said the original plan for the first robbery was that Male B would grab Mr To’s neck whereas he would snatch To’s phone away.  But in the end he acted as a lookout instead.  As far as the second robbery is concerned, he said his attention was attracted by the mobile phones being carried by Chan and Cheung, and he thought they were wealthy.

21.  D1 said he had sold all 3 mobile phones for $2,850 to someone on the street, and he had given $700 to Male B.  D1 said he himself had used up all the money left.

22.  D1 was born in September 2002.  He was close to 18 years old at the time of both offences, and is 20 years of age at the time of sentencing.

23.  He has one conviction for common assault, for which he was fined $2,000. That was a conviction registered in December 2020, some time after commission of these robbery offences.  Therefore, D1 was a person of clear record at the time of the current offences.

24.  D1 lives with his mother and elder sister.  His mother and sister both work as nurses at private clinics and have had stable incomes.

25.  D1 was educated up to secondary 3.  After that he enrolled for a 3-year diploma course, but he soon quitted from the course.

26.  D1 has been granted bail in these proceedings until the time I revoked his bail for the purpose of calling some sentencing reports.  I am told that he has been in gainful employment working as a kitchen assistant at a restaurant. His monthly income is about $10,000.

27.  Counsel for D1, Ms Ho, submitted that D1 made a full confession as soon as he was interviewed by the police, and that he is truly remorseful for what he did.  It was submitted that he was immature and did not give thought to the serious consequence of his acts.

28.  Ms Ho submitted to this Court a mitigation letter written by D1’s mother.

29.  At the outset of the proceedings, Ms Ho adopted her written submissions and asked that a term of imprisonment be passed on D1 despite the fact that he is, at all material times, still under 21 years of age.

30.  However, as the proceedings went, Ms Ho changed her stance.  She highlighted D1’s young age and relatively minor criminal record, and invited this Court to obtain pre-sentencing reports before passing sentence.

31.  In the light of counsel’s submissions, I called for a Detention Centre report and a Training Centre report.  I did so because, first of all, I would like to explore sentencing options other than imprisonment, and secondly, to obtain more background information about D1.

32.  However, the officer who compiled the reports does not find D1 a suitable candidate for admission to either the Detention Centre or Training Centre. The main reason is that, as the officer reports, D1 is  dependent on a variety of drugs.

33.  He says he has found out from D1 that he began smoking cocaine every day since early 2018.  He says D1 told him that such addiction to cocaine ended some time in early 2022, but nevertheless, in about September 2022, he started to abuse two other drugs, namely ecstasy and “Happy Water”.

34.  The officer says D1 does not deny he was still consuming the drugs as of April 2023, just about two or three weeks before the sentencing proceedings.

35.  In the reports, the officer has set out in detail D1’s upbringing and background, education and employment history, etc. I do not see any need to repeat all those pieces of information here.  Suffice it to say that D1 comes from a single parent family, as his parents divorced when he was 7 years old.  Since then his mother has had custody of D1, but owing to her full time employment as a nurse, she could hardly provide enough parental guidance to D1; and as a result D1 lost interest in his studies, and frequently found himself wandering around on the streets.

36.  I do not see any reason to question the officer’s observation of D1 and his judgment that D1 is not suitable for admission to those two correctional services institutes.

37.  In the circumstances, the only sentencing option available is imprisonment.

38.  In her written submissions, Ms Ho drew this Court’s attention to HKSAR v Ku Kwok Wai [2012] 4 HKLRD 563 (CACC 14/2012), being a case concerning the applications lodged by two defendants for leave to appeal against sentence heard by the Court of Appeal.  There, the two applicants followed a 17-year-old victim into the lift lobby of the residential building where the victim resided. She was then engaged with someone on her phone and did not pay attention to the presence of the two applicants.  The second applicant stayed outside of the lobby and acted as a lookout, whilst the first applicant pushed the victim in the back forcefully and snatched her phone from her hand.  There were police officers nearby and one of the applicants was intercepted.  The phone was recovered.

39.  The Court of Appeal in its judgment referred to no less than 5 authorities.  The Court noted that, as the authorities reveal, in a case of unarmed robbery, where there are aggravating features[1], the starting point for sentence after trial is usually one of 4 years’ imprisonment.  The Court noted that, in R v Yau Kwok Tung[1987] HKLR 782, when Roberts CJ upheld a sentence of 4 years’ imprisonment imposed after trial for an offence of robbery, a remark was made that the circumstances in which the robbery was committed were at the top end of the tariff.

40.  In Ku Kwok Wai, the Court of Appeal agreed with the trial judge’s observation that the way the robbery was committed was “a step up from a theft or snatching”.  However, at the same time the Court was aware that a young woman was targeted when she was on her way home alone, and that the mobile phone was an item of value to her.  The Court upheld the starting point of 3 years 3 months’ imprisonment adopted by the trial judge and dismissed the applications for leave to appeal against sentence.

41.  I have taken into account all that have been said on behalf of the defendant.

42.  Given the seriousness of the offences, imprisonment is by no means a disproportionate method of disposal of D1.

43.  The issues before me, therefore, are the quantum of sentence for each offence and the ultimate term of imprisonment to be imposed.

44.  The present case is aggravated by the following features:

(i)  on each occasion D1 committed the offences with another person;

(ii)  as D1 himself admitted, he was the one who made the suggestion that they should rob the victims;

(iii)  D1 and his partner had made arrangement about the different roles, or tasks, that each of them had to perform at the time of the robberies;

(iv)  a lone victim was targeted on each occasion;

(v)  all 3 victims were teenagers (this piece of information was given by the prosecution at the proceedings);

(vi)  the robberies were committed at a time close to the midnight;

(vii)  the locations of the offences were quiet places where passers-by could hardly be expected; and

(viii)  the two robberies were committed within a period of two days.

45.  As regards the value of the stolen items, I would not say they were of low value.  The first victim lost not only his mobile phone but also personal identification documents.  The two mobile phones stolen in the second incident must have been of some value, otherwise D1 would not have said to the police that he thought the two victims Chan and Cheung were wealthy.

46.  Certainly I do not lose sight of D1’s clear record, young age, the relatively low degree of force used in both incidents, and D1’s remorse as shown by his full confession to the police and guilty pleas in court.

47.  Having taken all matters into consideration, I consider that a starting point of 3 years and 3 months is appropriate for each offence.  Therefore I adopt 3 years and 3 months’ imprisonment (i.e. 39 months)  as the starting point for each charge.

48.  D1 is entitled to a one third discount because of his timely plea.

49.  Therefore, for each of Charge 1 and Charge 2, the sentence is 2 years and 2 months’ imprisonment (i.e.  26 months).

50.  To my mind, a global sentence of 4 years’ imprisonment would be appropriate after trial.  After discounting that by one third, the final sentence should be 2 years and 8 months’ imprisonment (i.e. 32 months). 

51.  In order to achieve such resultant sentence, I order that 20 months of the sentence of Charge 2 is to run concurrently with the sentence of Charge 1, while 6 months of the sentence of Charge 2 is to run consecutively to the sentence of Charge 1.

52.  Therefore, I order that D1 be sentenced to 2 years and 8 months’ imprisonment.